Access to a waitlist is not access to health care

On Tuesday, four patient plaintiffs who have been victims of British Columbia's rationing of public health care finally get their day in a Vancouver court.

Each of the patients has suffered a catastrophic injury or disability or been diagnosed with a life-threatening illness and faced the agonizing decision of waiting on a public health-care list for more than a year in pain or while their conditions worsened, or seeking faster treatment at a private clinic.

Fortunately for them, there have been private clinics like the Cambie Clinic operating in British Columbia since the 1990s, where three of them were able to be treated quickly. Under legal pressure from the B. C. Nurse's Union, however, the provincial government has moved to shut them down. And so, in 2009, the plaintiffs launched this constitutional challenge to keep the clinics open.

Because there is so much confusion over health care in this country, it's important to be clear about what is, and what is not, at issue in this case. Most importantly, the plaintiffs are not challenging any aspect of the Canada Health Act or its goal of universal health care, free at the point of service, to anyone who needs it.

Their case is simply that, if a province does not provide timely access to treatment for all its residents through the public health-care system, then it cannot legally prohibit those patients suffering on waiting lists from taking control of their own health and arranging for private treatment.

This principle was recognized in the 2005 Supreme Court of Canada case of Chaoulli v. Quebec, the same case in which Chief Justice Beverley McLachlin pointedly observed: "Access to a waiting list is not access to health care."

What makes these patients' predicament so frustrating is that their suffering is unnecessary. Waiting lists are not usually the result of a shortage of resources or the unwillingness of patients to pay for them; they are the product of provincial budget decisions, which create an artificial scarcity.

Surgeons who have completed their government-allotted quota of procedures are barred by provincial law from then performing procedures for persons willing to pay for them outside the public system. Forcing patients to suffer while there are surgeons willing to treat them is not just bad policy, it is inhumane. It is also unheard of in any other developed country.

A compassionate healthcare system, like those in most European countries, would make use of these wasted resources. It would allow doctors who have performed their government-imposed quota of procedures in the public system to then provide treatment privately. It would also allow patients to pay for these services using their existing disability insurance or other private insurance, making this option affordable to more Canadians.

These two remedies, neither of which is prohibited by the Canada Health Act, would allow British Columbia's private clinics to remain open.

If they are closed, more British Columbians will be denied control over decisions about their own health, which the Supreme Court has found to be a direct violation of the Charter rights to life, liberty, security of the person. The Government of B. C. will also have to find space within its overburdened public health-care system to treat all their patients, at a cost hundreds of millions of dollars each year.

The patient plaintiffs have already benefitted from private treatment. Now they are fighting to make sure others have same option. Anyone who cares about our Charter rights, the sustainability of our health-care system, or fiscal responsibility should be hoping they succeed.

- Howard Anglin is the executive director of the Canadian Constitution Foundation, which is supporting the Cambie Clinic and the plaintiff patients in this case. For more information visit yourhealthcantwait.ca .